Florida Teacher Gets No Jail Time

[crazee4mickey]

I don't understand how someone in a position of trust such as this teacher gets no jail time but the "cool" mom who had sex parties for teenagers gets 30 years!! Makes no sense at all

 

[sodaseller]

Yeah, youre right. He followed the law and had the authority to make a decision otherwise BUT chose not to - and now Carlie Brucia is dead, and was also raped before she was killed.

Oh well.

Back up your statement - when did a judge have the legal discretion to hold him but did not?

 

[CathrynRose]

Back up your statement - when did a judge have the legal discretion to hold him but did not?

Here ya go:

A timeline in the abduction of 11-year-old Carlie Brucia of Sarasota, Fla.:
_Since 1993: Joseph P. Smith arrested at least 13 times in Florida, according to state records.

_ 1997: Joseph P. Smith was arrested in Manatee County on kidnapping and false imprisonment charges, but was acquitted a year later.

_ August: Probation officer in Sarasota sent Judge Harry M. Rapkin notice that Smith was violating his probation.

_ Dec. 30: Judge Harry M. Rapkin did not declare Smith in violation of his probation when asked by his probation officer with a second notice about Smith violating his probation.

_ Sunday February 1: Carlie Brucia abducted at 6:16 p.m. outside a car wash while walking home from a friend's house.

_ Monday: Authorities release images of Carlie's abduction taken from a surveillance camera. It shows her taken by a man wearing a mechanic's uniform. Amber alert issued for Carlie.

_ Tuesday: Carlie's mother, Susan Schorpen, pleads for her daughter's safe return. Joseph P. Smith, an unemployed auto mechanic, held in custody on an alleged probation violation.

_ Wednesday: Authorities announce that Smith is considered suspect in abduction. Investigators search Smith's Buick Century station wagon for clues. A nighttime Bible study is held at the church where Carlie's body is later found, but no one notices anything.

_ Thursday: Investigators say Smith uncooperative with authorities, say "strong evidence" links him to the abduction.

_ Friday: Authorities announce the discovery of Carlie's body. Body found outside a church a few miles from the car wash. Smith charged with first-degree murder and kidnapping.

http://www.palmbeachpost.com/news/content/gen/ap/FL_Abduction_Filmed_Chronology.html

 

[sodaseller]

Here ya go:

A timeline in the abduction of 11-year-old Carlie Brucia of Sarasota, Fla.:
_Since 1993: Joseph P. Smith arrested at least 13 times in Florida, according to state records.

_ 1997: Joseph P. Smith was arrested in Manatee County on kidnapping and false imprisonment charges, but was acquitted a year later.

_ August: Probation officer in Sarasota sent Judge Harry M. Rapkin notice that Smith was violating his probation.

_ Dec. 30: Judge Harry M. Rapkin did not declare Smith in violation of his probation when asked by his probation officer with a second notice about Smith violating his probation.

_ Sunday February 1: Carlie Brucia abducted at 6:16 p.m. outside a car wash while walking home from a friend's house.

_ Monday: Authorities release images of Carlie's abduction taken from a surveillance camera. It shows her taken by a man wearing a mechanic's uniform. Amber alert issued for Carlie.

_ Tuesday: Carlie's mother, Susan Schorpen, pleads for her daughter's safe return. Joseph P. Smith, an unemployed auto mechanic, held in custody on an alleged probation violation.

_ Wednesday: Authorities announce that Smith is considered suspect in abduction. Investigators search Smith's Buick Century station wagon for clues. A nighttime Bible study is held at the church where Carlie's body is later found, but no one notices anything.

_ Thursday: Investigators say Smith uncooperative with authorities, say "strong evidence" links him to the abduction.

_ Friday: Authorities announce the discovery of Carlie's body. Body found outside a church a few miles from the car wash. Smith charged with first-degree murder and kidnapping.

http://www.palmbeachpost.com/news/content/gen/ap/FL_Abduction_Filmed_Chronology.html

And here you go

http://www.sptimes.com/2004/02/07/Tampabay/Desperate_search_ends.shtml

Smith's most fateful break came in December.


* * *

Corrections officials asked a judge to sign a warrant for Smith's arrest after he failed to pay $170 in costs that were a condition of his probation.

Judge Rapkin attached a note to Smith's file saying, "I need evidence that this was willful! Did he have the ability to pay."

Joe Papy, a Tampa-based regional director of the DOC, said the judge should have held a hearing to determine whether Smith could pay, holding him in jail until then.

"It's the court's responsibility to act," Papy said.

Rapkin said Smith's probation officer never got back to him after that note was put in the file. Now, many blame Rapkin that Smith was free.

"If I thought that not signing a warrant caused this girl's death, I'd quit," Rapkin said. "I couldn't live with myself. But that didn't happen. I did my job."

Rapkin said he was bound by law to issue a warrant only if there was proof that Smith had the money to pay the fees but willfully neglected his obligation.





Trial court abused its discretion in finding probationer had violated condition of probation that required him to pay costs of sex offender counseling, where state presented no evidence aside from probation officer's testimony regarding amount probationer was in arrears on his payments for sex offender counseling. Reed v. State, 865 So. 2d 644 (Fla. Dist. Ct. App. 2d Dist. 2004).

Trial court abused its discretion in finding that probationer violated condition of probation by being $555.30 behind in payment for costs of supervision, where state presented no evidence as to probationer's ability to pay costs, and presented only probation officer's testimony regarding amount that probationer was in arrears on costs of supervision. Reed v. State, 865 So. 2d 644 (Fla. Dist. Ct. App. 2d Dist. 2004).

In order to prove willfulness in failing to pay restitution, a necessary element to prove a violation, the state must present evidence of the probationer's ability to pay. Mabrey v. Florida Parole Com'n, 858 So. 2d 1176 (Fla. Dist. Ct. App. 2d Dist. 2003).

Evidence that probationer was in arrears with respect to failure to pay supervision and court costs, by itself, was insufficient basis for revoking probation, absent showing that probationer had ability to pay, and thus, that non-payment was willful. Glasier v. State, 849 So. 2d 444 (Fla. Dist. Ct. App. 2d Dist. 2003).

When the probationer is accused of violating by failing to pay court costs or costs of supervision, the State must adduce evidence of her ability to pay to demonstrate willfulness. Glasier v. State, 849 So. 2d 444 (Fla. Dist. Ct. App. 2d Dist. 2003).

To establish that defendant violated his community control by failing to pay court-ordered costs, State was required to present evidence that defendant had the ability to make such payments. Baker v. State, 789 So. 2d 410 (Fla. Dist. Ct. App. 4th Dist. 2001).




So should Judge Rapkin issue a warrant of willful violation of probation without evidence of that, or are you suggesting that is not a legal requirement?

You're wrong

 

[sodaseller]

BTW, note how either the Post or the poster conspicuously omitted the judge's note requesting the constitutionally required proof of indigency

 

[CathrynRose]

So should Judge Rapkin issue a warrant of willful violation of probation without evidence of that, or are you suggesting that is not a legal requirement?

You're wrong

Totally, totally sad.

A shame you wouldnt hold a judge accountable for decisions made which later effected a young girls life.

 

[zalansky]

hmmm I did that at 13 with a 22 year old teacher and the only after effects I have are fond memories...

Thank you!!

 

[Shutterbug]

Why the double standard?
Heres my opinion it has to do with the physical differences and what is being put where inside of whom(best way I can describe it on this forum).

For instance with a young boy people look at it this as 14 yr old boy having sex with an older woman NOT an older woman having sex with a 14yr old boy.
Where as with a young girl they look at it as an older man having sex with a young girl NOT a young girl having sex with an older man. Making sense?

 

[Shutterbug]

I had crush my 5th grade teacher! She was a hot blonde! I was in heaven when she gave me a peck on the cheek one day. Today, I am perfectly fine.
Like Mickey88 I have nothing but fond memories.

 

[MICKEY88]

I had crush my 5th grade teacher! She was a hot blonde! I was in heaven when she gave me a peck on the cheek one day. Today, I am perfectly fine.
Like Mickey88 I have nothing but fond memories.

mine went a tad farther than that

 

[RitaZ.]

Why the double standard?
Heres my opinion it has to do with the physical differences and what is being put where inside of whom(best way I can describe it on this forum).

For instance with a young boy people look at it this as 14 yr old boy having sex with an older woman NOT an older woman having sex with a 14yr old boy.
Where as with a young girl they look at it as an older man having sex with a young girl NOT a young girl having sex with an older man. Making sense?

The adult is the one that should know better, what is appropriate and inappropriate. IMO, that woman probably has some mental issues.

I think the reason some people don't see a problem with this is because men are usually seen as the one with "nothing to lose, but everything to gain" in sexual situations. Society sees women as nurturing and wholesome, whereas men are seen as animals controlled by their hormones.

 

[djcruz4fun]

The #1 job of an adult after family and all that stuff is to look out for the safety of all children, a person man or woman in a position of trust should not betray that trust. IMO the a death sentence is not severe enough

 

[MrsPete]

Her teaching license has been revoked.

Thank goodness! She deserves more than that, but at least she won't be in the classroom any longer (in public school anyway -- you don't need a license to teach in a private school).

I teach high school seniors, who are eons older than 14 year olds, and still, I have NO IDEA what any adult could be thinking . . . these kids are still babies!

 

[MrsPete]

I certainly don't want to demeane one or the other, but I would think, being molested by a priest would carry a bit more emtional damage than having consentual sex with a 25 year old, beautiful woman.

Ah, but there's the rub: the word consentual. In my state, the age of consent is 16. Therefore, legally a 14-year old (male or female) is not considered old enough to give informed, knowledgable consent.

The fact that she's more than 4 years (or is it 6? -- doesn't matter) makes it statutory rape.

 

[MrsPete]

Too beautiful to go to jail? WHAT???

I don't think she is beautiful at all. She looks cheap. Yuck.

I think she'd be pretty if she wasn't made up to look like a calendar girl who'd be stuck on the wall of some greasy garage.

 

[sodaseller]

Reading today, the sentence was the result of a plea bargain, which the boy's parents agreed to to spare him the trauma of public testimony. This is an issue that has arisen over the last few years, whether the Sixth Amendment's Confrontation Clause giving each criminal defendant the right to face and cross examine any witness against them, can be relaxed in child exploitation cases to spare the child the ordeal of public testimony. Courts have tried out of court testimony with just the lawyers and other such measures but the High Court has struck that down based on the literal language of the Constitution

In 1990, the Court felt that limited exceptions in the case of children that feared confronting their victimizers was sufficient to relax the amendment

Justice Scalia, with whom Justice Brennan, Justice Marshall, and Justice Stevens join, dissenting.


Seldom has this Court failed so conspicuously to sustain a categorical guarantee of the Constitution against the tide of prevailing current opinion. The Sixth Amendment provides, with unmistakable clarity, that "n all criminal prose cutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." The purpose of enshrining this protection in the Constitution was to assure that none of the many policy interests from time to time pursued by statutory law could overcome a defendant's right to face his or her accusers in court. The Court, however, says:


"We ... conclude today that a State's interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant's right to face his or her accusers in court. That a significant majority of States has enacted statutes to protect child witnesses from the trauma of giving testimony in child abuse cases attests to the widespread belief in the importance of such a public policy." Ante, at 13.



Because of this subordination of explicit constitutional text to currently favored public policy, the following scene can be played out in an American courtroom for the first time in two centuries: A father whose young daughter has been given over to the exclusive custody of his estranged wife, or a mother whose young son has been taken into custody by the State's child welfare department, is sentenced to prison for sexual abuse on the basis of testimony by a child the parent has not seen or spoken to for many months; and the guilty verdict is rendered without giving the parent so much as the opportunity to sit in the presence of the child, and to ask, personally or through counsel, "it is really not true, is it, that Iyour father (or mother) whom you see before youdid these terrible things?" Perhaps that is a procedure today's society desires; perhaps (though I doubt it) it is even a fair procedure; but it is assuredly not a procedure permitted by the Constitution.

Because the text of the Sixth Amendment is clear, and because the Constitution is meant to protect against, rather than conform to, current "widespread belief," I respectfully dissent.


I According to the Court, "we cannot say that [face-to-face] confrontation [with witnesses appearing at trial] is an in dispensable element of the Sixth Amendment's guarantee of the right to confront one's accusers." Ante, at 10. That is rather like saying "we cannot say that being tried before a jury is an indispensable element of the Sixth Amendment's guarantee of the right to jury trial." The Court makes the impossible plausible by recharacterizing the Confrontation Clause, so that confrontation (redesignated "face-to-face confrontation") becomes only one of many "elements of confrontation." Ante, at 7. The reasoning is as follows: The Confrontation Clause guarantees not only what it explicitly provides for"face-to-face" confrontationbut also implied and collateral rights such as cross-examination, oath, and observation of demeanor (TRUE); the purpose of this en- tire cluster of rights is to ensure the reliability of evidence (TRUE); the Maryland procedure preserves the implied and collateral rights (TRUE), which adequately ensure the reliability of evidence (perhaps TRUE); therefore the Confrontation Clause is not violated by denying what it explicitly provides for"face-to-face" confrontation (unquestionably FALSE). This reasoning abstracts from the right to its purposes, and then eliminates the right. It is wrong be- cause the Confrontation Clause does not guarantee reliable evidence; it guarantees specific trial procedures that were thought to assure reliable evidence, undeniably among which was "face-to-face" confrontation. Whatever else it may mean in addition, the defendant's constitutional right "to be confronted with the witnesses against him" means, always and everywhere, at least what it explicitly says: the "`right to meet face to face all those who appear and give evidence at trial.'" Coy v. Iowa, 487 U.S. 1012, 1016 (1988), quoting California v. Green, 399 U.S. 149, 175 (1970) (Harlan, J. concurring).

The Court receded from that exception more recently

Justice Scalia wrote the majority opinion. Concluding that the text of the Sixth Amendment did not resolve the case, the Court turned to the historical background of the Confrontation Clause in order to understand its meaning. After reviewing this history, Scalia concluded that it supports two inferences about the meaning of the Clause. “First, the principal evil at which it was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.” Crawford, 124 S. Ct. at 1363. The text of the Confrontation Clause, he wrote, reflects this focus as it applies to "witnesses" against the accused--in other words, those who "bear testimony." "Testimony," in turn, is typically "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." Id. at 1364. Second, “the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Id. at 1365.
1
Stating that the Court’s cases have been largely consistent with these principles, Scalia acknowledged that White v. Illinois, 502 U.S. 346 (1992), is “arguably in tension” with them. White involved, in part, statements of a child victim to an investigating police officer admitted as spontaneous declarations. Scalia found it “questionable” whether testimonial statements “would ever have been admitted on that ground in 1791.” Id. at 1368 n.8. However, he distinguished White on grounds that it only addressed whether the Confrontation Clause imposed an unavailability requirement on the types of hearsay at issue and did not address whether certain of the statements, because they were testimonial, had to be excluded even if the witness was unavailable. Scalia did acknowledge, however, that his opinion “casts doubt on that holding.” Turning to Ohio v. Roberts, 448 U.S. 56 (1980), the Court noted that under Roberts, the Confrontation Clause does not bar admission of an unavailable witness’s statement if the statement falls within a firmly rooted hearsay exception or bears particularized guarantees of trustworthiness. Scalia concluded that the Roberts test “departs from the historical principles identified above” in two respects. First, it is too broad: “It applies the same mode of analysis whether or not the hearsay consists of ex parte testimony[, and thus] . . . results in “close constitutional scrutiny in cases that are far removed from the core concerns of the Clause.” The test is also too narrow: “It admits statements that do consist of ex parte testimony upon a mere finding of reliability[]” and as such “often fails to protect against paradigmatic confrontation violations.” Noting that the goal of the Confrontation Clause is to ensure reliability of evidence, Scalia concluded that “it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Id. at 1370. Scalia went on to state that two options have been proposed to revise the Court’s doctrine to reflect more accurately the original understanding of the Clause. First, that the Court apply the Confrontation Clause only to testimonial statements, leaving the remainder to regulation by hearsay law. Second, that it impose an absolute bar to statements that are testimonial, absent a prior opportunity to cross-examine. Scalia noted that in White, the Court considered the first proposal and rejected it. Acknowledging that the Court’s opinion casts doubt on White, Scalia said it was not necessary to resolve whether White remained good law because the statements in the case before the Court were clearly testimonial under any definition. Although not expressly overruling Roberts as it applies to non-testimonial hearsay, Scalia left open the possibility that the Court might one day adopt the first option. Specifically, he stated: “Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law--as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether.” Id. at 1374. The case at hand, however, squarely implicated the second proposal, and as to that, he held: Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of "testimonial." Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed. Id. at 1374.
2

So the issue here was that the child would have had to testify, and the family would rather avoid that than see the maximum possible sentence